Citation: 4, MLR (1999) (HC) 358, 1, MLR (1996) (HC) 338, 5 MLR (2000) (AD) 89), 2, MLR (1997) (HC) 137, 3, MLR (1998) (HC) 73, 4, MLR (1999) (AD) 89, 1, MLR (1996) (AD) 49, 2, MLR(1997) (HC) 15, 4, MLR (1999) (AD) 316, 2, MLR (1997) (HC) 326, 4, MLR (1999) (AD) 4
Case Year: 1972
Subject: Constitution of Bangladesh
Delivery Date: 2018-04-01
Constitution of Bangladesh
Article 7, 11, 15, 19, 27. 31, 32 and 112— Eviction of Slum-dwellers— Without alternative arrangements— Violative of fundamental rights—
In a democratic State like ours right to life, shelter, livelihood and respect for dignity and worth of human person are fundamental rights which shall be guaranteed as contemplated by our Constitution and it is the responsibility of the State to secure social welfare by economic growth providing basic necessities of life. Slum-dwellers are homeless and hearthless people being driven by misfortunes and natural calamities took shelter in slums many of whom are women, innocent helpless persons and disabled. Their eviction by bulldozing the shanties without alternative rehabilitation programme is disapproved. Order of the Registrar in administrative capacity is also an order of the Supreme Court which is equally binding upon all concerned as mandated by article 112 of the Constitution.
Ain O Salish Kendra (ASK) and others Vs. Government of Bangladesh and others. 4, MLR (1999) (HC) 358.
Article 15 and 19—Fundamental State principles—
Although fundamental principles of state policy are not judicially enforceable such principles cast obligation to treat citizens equally while managing affairs of the state.
M.A. Wahab & others Vs. Secretary, Ministry of Land 1, MLR (1996) (HC) 338.
Article 22— Separation of the Judiciary— Separate Service and Pay Commission for judicial service may be formed— No constitutional amendment is necessary for separation of the judiciary which may be effected by making Rules by the President—
Article 22 imposes the duty upon the State to ensure separation of the judiciary from the executive organs of the State. The judicial service as defined under article 152(1) is a distinct and separate service not to be equated with other cadre services. Article 109 vests in the High Court Division the power of control and superintendence over the subordinate courts and tribunals. The President is empowered by article 115 to appoint persons in the judicial service and Magistrates exercising judicial functions in accordance with the rules made by him in that behalf. As provided under article 116 the President shall exercise the control including power of posting, transfer, promotion and discipline of the judicial officers and the judicial magistrates in consultation with the Supreme Court. The judicial officers and the magistrates exercising judicial functions shall be independent as per provision of article 116A. There are already the provisions providing for the separation of the judiciary from the executive organs of the State and as such no constitutional amendment is necessary and for effecting full and complete separation the President can do so by making rules as may be necessary. The judicial sendee being distinct and separate as defined in the Constitution cannot be subordinate to the executive organs of the State and they cannot submit to the jurisdiction of the Administrative Tribunal and their pay and service conditions may be determined by a Separate Service and Pay Commission. The cancellation of the G. O. in respect of the scale of pay of the judicial officers being violative of the fundamental rights guaranteed under article 27 is declared void and of no legal effect. (Latter partly modified by Appellate Divisioi/s decision reported in 5 MLR (2000) (AD) 89).
Masdar Hossain (Md) and others Vs. Bangladesh represented by the Secretary Ministry of Law and Justice and others 2, MLR (1997) (HC) 137.
Article 25— Article 102— Locus standi-Extradition—No legal bar on way of extradition—Public interest litigation not tenable—
Saiful Islam Dildar, the Secretary General of Bangladesh Human Rights Commission having no common interest with Anup Chetia, Secretary General of ULFA an Assamese and Indian national and a leader of secessionist movement has no locus stand! and is not an aggrieved person and as such can not invoke the writ jurisdiction seeking courts' intervention in the matter of handing over Anup Chetia to India. The application is also premature because it has been filed on the basis of a news item published in news paper. As provided under Article 25 of the Constitution and Section 4 of the Extradition Act, 1974 there is no legal bar on the way of extraditing Anup Chetia on Indian request.
Anup Chetia Secretary General ULFA & another Vs. Government of Bangladesh and others. 3, MLR (1998) (HC) 73.
Article 27— All pensioners are not equal—
All Pensioners are not on equal footing and are not equally circumstanced. They are governed by different rules and table of calculations subject to changes from time to time and as such they do not form a homogeneous class by themselves. Therefore there is nothing wrong in their classification and the Government is perfectly within its legal bound to make classifications of the pensioners which is not discriminatory offending article 27 of the Constitution.
Bangladesh Retired Government Employees Welfare Association and others Vs. Bangladesh represented by the Secretary Ministry of Finance and others. 4, MLR (1999) (AD) 89.
Surplus Publice Servant Absorption Ordinance, 1985
Section 5- Right of absorption-Article 27 of the Constitution-Discrimination—
The respondent is held to have been absorbed under the Ordinance. Otherwise it will amount to endorsing a double standard on the part of the Government giving benefit to a particular person and denying the same to another on equal footing offending the equality clause of article 27 of the Constitution.
The Director General NSI Vs. Sultan Ahmed. 1, MLR (1996) (AD) 49.
Article 31—Protection of life—What it means—
Protection of life as contemplated under article 31 does not mean protection of any illegal action of any person. The local authority has the right to evict unauthorised occupant and recover possession by eviction.
Giasuddin Vs. Dhaka Municipal Corporation. 2, MLR(1997) (HC) 15.
Article 102- Scope of intervention in service matter—Article 29— Equality of opportunity of employment—
Mere preparation of list of some persons for appointment to certain posts does not create any vested right enforceable in law. But when on the basis of certain statutory-backing and Government decision, list is prepared of certain persons for appointment/absorption to certain posts and some of them are appointed and some are left out, the left out writ petitioners in the circumstances can certainly invoke the writ jurisdiction for intervention on ground of discrimination.
Secretary Ministry of Establishment, Government of Bangladesh and others Vs. Md. Jahangir Hossain and others. 4, MLR (1999) (AD) 316.
Article 31— Equal protection of law— Responsibility of the Government—
As provided under article 31 it is the responsibility of the. Government to give equal protection of law to its every citizen wherever he or she may be. The inaction on the part of the Government to take steps for repatriation of victim girl, daughter of the petitioner who being in the trap of the illegal traffickers has so long been languishing in the neighbouring country has been strongly disapproved as violative of article 27 and 31 of the Constitution and against the principle of fair play.
Abdul Gafur Vs. Secretary Ministry of Foreign Affairs, Government of the Peoples Republic of Bangladesh and another. 2, MLR (1997) (HC) 326.
Article 39— Freedom of expression and thought— Note Books (Prohibition) Act, 1980 Whether violative of —
Subordinate legislation must always be subject to the provision of the Constitution, the supreme law of the land.Note Books (Prohibition) Act, 1980 directly infringes the fundamental right guaranteed under article 39 of the Constitution and as such is unconstitutional and violative of article 39(2) of the Constitution.
(Per Latifur Rahman-J given in the dissenting judgment contrary to the majority decision)Bangladesh National Curriculum & Text Book Board Vs. A.M. Shamsuddin & others. 4, MLR (1999) (AD) 434.
Article 43— Protection in home against entry, search and seizure—
To be secured in home against entry, search and seizure is a fundamental right which cannot be curtailed except in the manner as provided under section 96 of the Code of Criminal Procedure, 1898. Search and seizure made in contravention of the requirements of law are not sustainable.
Government of Bangladesh & others Vs. Hussain Mohammad Ershad. 5 MLR (2000) (AD) 254.
Article 66(22)(d)- Disqualification-Determination of election dispute-Jurisdiction of High Court Division—
Acceptance of nomination by the Returning Officer is part of election process and is well within his (Returning Officer) jurisdiction. An objection against acceptance of nomination on ground of disqualification on conviction and sentence is an election dispute which can be adjudicated by Election Tribunal. The High Court Division has no jurisdiction under Article 102 of the Constitution to decide an election dispute except on ground of coram non-judice and malice in law.
A.K.M. Mayeedul Islam Vs. Bangladesh Election Commission and others. 1, MLR (1996) (AD) 230.
Article 67(l)(b)— Boycott means absence without leave—
Walkout, consequent non-return and boycott by whatever epithet it is called mean the same thing i.e. absent without leave of Parliament resulting in the vacation of seat in Parliament.
Special Reference No. 1 of 1995. 1, MLR (1996) (AD) 21.
Article 68—Remuneration, allowance and Privilege of members of Parliament—The Members of Parliament (Remuneration and Allowances) Order, 1973 (P.O.No. 28 of 1973)— Provisions for import of duty free jeep and car by M.Ps are not unconstitutional—
Although the nomenclature of the P.O.No.28 of 1973 does not contain the word "privilege" but it is already there under article 68 of the Constitution in pursuance of which the P.O. was made. Article 3-C of the P.O. 28 of 1973 with regard to duty free jeep or car even if it offends conscience of a section of people outside the Parliament is not unconstitutional and the enactment of the provision is well within the legislative competence of the Parliament.
Ahmed Husain (Dr.) Vs. Bangladesh represented by the Secretary, Ministry of Law and Justice. 3, MLR (1998) (AD) 281.
Article 70— Dispute as to the seat of a Member of Parliament falling vacant—
Article 70 of the Constitution provides for vacating the seat in the Parliament of a member when he resigns from the party which nominated him as a candidate at the election or if he votes in Parliament against that party. The Speaker is under the constitutional obligation to refer such dispute to the Election Commission fordecision under section 3 of the Members of Parliament (Determination of Dispute) Act. 1980. The reference of the dispute to the Election Commission being statutory act or omission is amenable to the jurisdiction of the High Court Division for judicial review.
Secretary, Parliament Secretariat Vs. Khandker Delwar Hossain and others. 4, MLR (1999) (AD) 377.
Article 83— Levy without authority of an Act of Parliament—Not permissible—
No levy or tax can be imposed or collected except by or under the authority of an Act of Parliament. Customs duties on Yellow Book value of imported vehicles shall be payable. Order for releasing imported vehicles without Bank guarantee for the disputed claim is not proper.
Commissioner of Customs, Chittagong Vs. Ciasuddin Chowdhury and another. 2, MLR (1997) (AD) 282.
Article 92-payment of decretal money from consolidated fund— Code of Civil Procedure 1908- Order 21 rule 52, 56—
Article 92-authorises the Parliament to make laws for withdrawal of money from the Consolidated Fund. Code of Civil Procedure and the Bangladesh Bank Order 1972 are Acts of Parliament. Under section 71 of the Bangladesh Bank Order 1972 Governor is a Public officer and is obliged to obey court's order to pay the decretal money from the Consolidated Fund in satisfaction of decree under Order 21 or 52 and 56 of the Code of Civil Procedure.
Bangladesh Bank Vs. Mrs. Rana Awan and others. 1, MLR (1996) (HC) 271.
Article 102- Writ Jurisdiction of High Court Division in public interest litigation—
The expression 'any person aggrieved' if capsulised, amounts to what is broadly called 'sufficient interest'. Any person other than an officious intervenor or a wayfarer without any interest in the matter in dispute is qualified to be a person aggrieved and can maintain an action for judicial redress of public injury arising from breach of public duty or for violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. There can be no straight-jacket formula for determining 'sufficient interest' which of necessity, has to be decided in the facts of each case. The mechanism under article 102(1) for enforcement of Fundamental Rights can also be shared by an individual in common with others when the rights pervade and extend to the entire population or territory and in such cases any member of the public or an indigenous association suffering common injury or common invasion is a person aggrieved arid has the right to invoke the jurisdiction under article 102.
Dr. Mohiuddin Farooque Vs. Bangladesh represented by the Secretary, Ministiy of Irrigation & Water Resources and Flood Control & others. 1, MLR (1996) (AD) 325.
Article 102- Writ Jurisdiction
Grant of lease of fisheries for three years for certain development scheme does not give any assurance of extension of the term of lease and as such there can be no question of promissory estoppel tolease out the said fisheries to other party. Writ fails.
Bagbari Poshim Matshajibi Samity Ltd. Vs. Government of Bangladesh. 1, MLR (1996) (HC) 304.
Article 102 (2)— read with section 7 of P.O. 16 of 1972— Enlistment of abandoned property—
When the owner of certain property is Bangladeshi national and never left the country, and was in possession thereof althrough, such property can not be enlisted in "Kha list" as abandoned property.
Syed Chand Sultana and others Vs. Government of Bangladesh. 1, MLR (1996) (HC) 310.
Article 102— Inter minis trial communication does not create any legal right—
A letter from one Secretary to other Secretaries of the Ministries informing decision of the Government to return unutilised excess land remaining as such for long time does not confer any title to the original owner and as such writ jurisdiction under article 102 cannot be invoked.
Kazi Aftabuddin & others Vs Bangladesh represented by Secretary Ministry of Land & others. 1, MLR (1996) (HC) 269.
Article 102— Confiscation of passport—
A Citizen of Bangladesh granted passport by the Government has the right to use it for travelling abroad and the said passport cannot be confiscated without any lawful authority and without opportunity to show cause.
Mrs.Nasrin Hossain Vs. Government of Bangladesh. 1, MLR (1996) (HC) 344.
Article 102 of the Constitution— Jurisdiction— Disputed facts—
The High Court Division cannot arrogate to itself jurisdiction of making assessment of facts under dispute.
Md. Abul Hashim Vs. Election Commission. 1, MLR (1996) (HC) 120.
Article 102—Writ petition when does not become infructuous—
A writ petition does not become infructuous because an adinterim order has been passed. If a Rule is discharged on such ground, the adinterim order also goes with the discharge order. A writ petition must be decided on merit irrespective of whether an interim order has been passed or not.
Bangladesh represented by the Secretary, Ministry of Education and others Vs. Md. Abdul Quader. 2, MLR (1997) (AD) 46.
Article 102— Scope of writ jurisdiction— Possession of lessee-Whether can be interfered with by administrative order restraining construction—
The title of land and forgery of deed are questions of fact which can be decided on the basis of evidence by a court of competent jurisdiction. Such matters cannot be decided by the High Court Division in its writ jurisdiction. Although the Government or the Deputy Commissioner have the right to order for holding inquiry into certain administrative matter, such orders are not of the nature passed in a proceeding under section 145 of the Code of Criminal Procedure and as such the person in possession of the land on the basis of lease cannot be restrained from proceeding with the construction works,rather his possession should be protected if there is any apprehension of breach of peace over the possession thereof.
Banamali Pal and others Vs. Md. Nazrul Islam and others 2, MLR(1997) (AD) 65.
Article 102— Discharge of writ petition on ground of non-prosecution—
There is no legal infirmity in the order discharging the rule in a writ petition on ground of non-prosecution for the reason of the writ petition becoming infructuous, passed by the High Court Division on an application of the writ petitioner after notice to the advocate concerned and hearing in presence of the advocates of both sides. Subsequent objection to the effect that the opposite party was not afforded opportunity to controvert the contents of the application is not sustainable in the eye of law.
Akhtaruzzaman Chowdhury Vs. Bangladesh represented by the Secretary Ministry of Commerce. 2, MLR (1997) (AD) 79.
Article 22 and 116—Separation of the Judiciary from the Executive— Constitutional amendment necessary—
The constitutional position in relation to the question of separation of the Judiciary from the Executive has undergone certain changes after the Fourth Amendment of the Constitution. That the separation as envisaged under article 22 can be effected by making Rules only and no constitutional amendment is necessary is not the correct proposition of law. In view of the constitutional provision contained in article 116, constitutional amendment is necessary which has to be done by the Parliament.
Secretary, Ministry of Finance, Gout, of Bangladesh Vs. Met Masdar Hossain and others. 5 MLR (2000) (AD) 89.
Article 102— Addition of Party to a writ petition—
Where the writ petitioner claims relief challenging certain order of his employer who has already been made party to the writ petition, the present incumbent holding the post of Director General is not a necessary party to the writ petition because his fate depends on the success or failure of his employer who is infact the necessary and proper party.
Md.Mobarak Hossain Khan Vs. Azad Rahman and others. 2, MLR (1997) (AD) 81.
Article 102—Grant of adinterim injunction while issuing rule is not obligatory—
The Writ jurisdiction of the High Court Division is discretionary. No legal right is accrued merely because the petitioner has submitted tenders. Similarly ii is not obligatory to grant adinterim injunction, when a rule Nisi was issued. There is nothing illegal in the order refusing adinterim injunction.
Mohsin Mia (Mr.) Vs. Bangladesh represented by the Secretary, Ministry of Forest and Environment and others. 2, MLR (199 7) (AD)109.
Article 102— Despite alternative remedy writ jurisdiction can be invoked—
Although there exists alternative remedy by way of appeal under section 30 of the Special Powers Act, 1974, the jurisdiction of the High Court Division under article 102 of the Constitution isnot barred and it can well be invoked in exceptional circumstances when the petitioner satisfies it that he had reasonable ground for not availing of the remedy thereunder and such exercise of the jurisdiction can. be made with a view to preventing failure of justice and in so doing the High Court Division in its extraordinary jurisdiction cannot sit over the impugned judgment of the tribunal or quasi-judicial bodies as a Court of appeal but it can only decide the controversial legal issues on the basis of the facts and circumstances apperant on the face of the record.
Naser Ahmed & Babul Vs. Government of Bangladesh represented by the Deputy Commissioner Noakhali & another. 2, MLR (1997) (AD) 114.
Article 102— Army Act and Army Rule are not amenable to writ jurisdiction—
As the terms and conditions of service of an army personnel are governed by the Army Act and Army Rules, the writ jurisdiction of the High Court Division cannot be invoked in respect of violation of any such terms and conditions.
Colonel (Retd.) S.M. Reza Vs.The Secretary, Ministry of Defence and others. 2, MLR (1997) (AD) 243.
Article 102-Interim order— against development programme—
The High Court Division can not pass interim order which is likely to affect or prejudice or interfere with any development programme or otherwise harmful to public interest without reasonable notice to the Attorney General and without giving an opportunity of being heard and without having regard to the provisions of sub-clause (a) or (b) of clause (4) of Article 102.
Commissioner of Customs, Chittagong Vs. Giasuddin Chowdhury & another, 2, MLR (1997) (AD) 282.
Article 102(2)(a)(ll)— detention for non-payment of loan money— Not permissible—
Since there is no nexus between the non-payment of loan money and the grounds enumerated under section 3(l)(a) of the Special Powers Act, 1974, no detention under section 3(1 Ha) of Special Powers Act can be given for non-payment of loan money and as such the detention in the instant case being not authorised by law is illegal and of no legal effect.
Government of the People's Republic of Bangladesh Vs. Mirza Alt Ashraf and others. 2, MLR(1997) (AD) 300.
Article 102— Dispute as to factual aspects does not fall within writ jurisdiction—
The dispute as to the quantity of cargo involves factual aspects which can not be determined in the writ jurisdiction.
Ancient Steamship Company Ltd Vs Member (Appeal and Revision) Ministry of Finance, Government of Bangladesh and others. 2, MLR(1997) (AD) 302.
Article 102—Pending determination of the legality of cancellation order delivery order is improper—
Where in a writ petition cancellation of Fertiliser dealership licence has been challenged and the High Court Division has to decide the legality or propriety of the cancellation order, directing for giving delivery of required quota of fertiliser tothepetitioner tilldisposalof the writ petition is improper.
Bangladesh Chemical Industries Corporation represented by its Chairman and others Vs. Md. Abdul Sattar Shah. 2, MLR (1997) (AD) 313.
Article 102— Disputed question of fact cannot be decided in writ jurisdiction—
Whether certain property is abandoned property or not is a question of fact which cannot be decided by the High Court Division in Writ jurisdiction. Finding of the Court of Settlement on fact based on proper appreciation of evidence cannot be interfered with in writ jurisdiction.
Bangladesh represented by the Secretary, M/s Works Vs. Chairman, Court of Settlement and another. 2, MLR(1997) (AD) 378.
Article 102— Public interest prevails over private interest—
Public interest must always prevail over the private interest unless the private interest is so overwhelming that public interest should be subordinated to it. Discharge of imported food grains from the chartered ship at the anchorage involves public interest. What the judicial norms warrant is that the application to vacate the stay order should be filed in the Bench which granted the same.
Frank Shipping Ltd. Vs. Government of Bangladesh and others. 2, MLR (1997) (AD) 353.
Article 102— Re-instatement of a teacher when the dismissal is not approved by Board—
Resignation of the Headmaster of a Secondary School obtained by force and not approved by the Board of Intermediate and Secondary Education was not of any legal effect. The reinstatement of the said Headmaster by order of the Deputy Commissioner in exercise of Magistrial power though not within the statutory frame work was not interfered with as the same was not illegal and was done in furtherence of the cause of equity and Justice.
Gazi Shamsul Hoque Vs. Deputy Commissioner, Dhaka and another. 2, MLR (1997) (AD) 389.
Article 102—Dispute as to quality of goods cannot be decided in writ jurisdiction—
Contract may be cancelled if the buyer on testing finds the sample of goods below the quality of specification. Dispute as to the quality of the sample is a question of fact which cannot be determined in a summary proceedings under article 102 of the Constitution.
Nafco (Pvt) Ltd. Vs. Bangladesh Sugar and Food Industries Corporation and others. 2, MLR (1997) (AD) 402.
Article 102— Ouster of jurisdiction— Power of scrutiny of the Court — to what extent such ouster operates—
The settled principle of law is that even where there is ouster of jurisdiction express or implied the court has the power to scrutinise whether the alleged ouster exists or bars the jurisdiction of the court in the true sense of the term and to what extent. When there was departure from strict compliance with the relevant provisions of law, courts' jurisdiction to interfere is not barred.
Shahriar Rashid Khan and Mrs. Mahmuda Rahman Vs. Bangladesh represented by the Secretary, Ministry of Law and others. 2, MLR (1997) (HC) 25.
Article 102— Detention for prejudicialactivities—Maliciousdetention— Compensatory cost may be awarded—
Since detention involves curtailment of fundamental rights of freedom of movement and speech guaranteed under the Constitution, the order thereof must be based on specific genuine grounds relating to prejudicial activities. Malicious detention has to be viewed with serious concern and in appropriate cases apart from declaring such order as illegal exemplary compensatory cost may be awarded to be paid by the State as a deterrent measure so that the State instrumentalities do not indulge in reckless and malafide detention of its citizen curtailing the valuable fundamental human rights.
Bilkis Akter Hossain Vs. Bangladesh represented by the Secretary Ministry of Home Ajjairs & others. 2, MLR(1997) (HC) 113.
Article 102— Right to trade and profession— Fundamental rights guaranteed by article 40—
Flight to trade and profession is fundamental right guaranteed by article 40 of the Constitution and as such this right cannot be taken away without due process of law. Export Registration Certificate once granted cannot be cancelled without affording opportunity to the holder thereof of being heard and when such certificate is cancelled by the Controller of Imports and Exports merely being instrumental on the direction of the Ministry of Commerce, application under article 102 is maintainable despite the availability of alternative efficacious remedy by way of appeal to the Government since rendered meaningless in the facts and circumstances of the case.
Acqua Foods Limited and another Vs. The Controller of Import and Export & others. 2, MLR (1997) (HC) 130.
Article 102— The Legal Remembrancer's Manual, 1960— Has no statutory force— Government can change its lawyers (GP) (PP) like private client. It also can appoint G.P., P.P. beyond the age of 60 years—
The Legal Remembrancers' Manual has no statutory force. Government pleaders or Public Prosecutors appointed under the Legal Remembrancer's Manual have no legal character. Government can change its lawyer like a private client. Removal or change of Government pleader or Public prosecutor does not entitle them to invoke writ jurisdiction to challenge such removal. Government has the discretion to appoint Government pleader beyond the age of 60 years.
Kazi Mokhlesur Rahman Vs. Secretary Ministry ojLaw, Justice and Parliamentary Affairs. 2, MLR (1997) (HC) 177.
Article 102-Disputed question of facts— Cannot be decided in writ jurisdiction—
High Court Division cannot decide disputed question of fact in its extraordinary writ jurisdiction. The finding of fact of the Court of Settlement can be interfered with by the High Court Division in its writ jurisdiction only on the ground of non-consideration of material evidence on record and misconstruction of any provision of law which led to erroneous decision.
Akhtari Begum and another Vs. Court of Settlement, and another. 2, MLR(1997) (HC) 295.
Article 102— Consideration for promotion does not mean giving promotion—
The observations made in the judgment of the writ petition are of the nature of guidance. Such observations cannot form the basis of decree in any subsequently instituted suit. Promotion depends on seniority, efficiency, fitness and satisfactory service record. When the case of promotion is duly considered there is the sufficient compliance with the observation of the judgment. The term consideration does not necessarily mean that the incumbent must be given promotion.
AnsaruddinAimed Vs. Sadharan Bima Corporation and others. 3, MLR (1998) (AD) 18.
Article 102— No enquiry by officer below the rank of accused permissible-
No enquiry against accused officer can be held by person below his rank. Similarly no removal order can be passed without serving second show cause notice which are grossly violative of the principle of natural justice.
Majibur Rahman Akanda (Md) General Manager, Security Printing Press Corporation Vs. Monjur Morshed and others. 3, MLR (1998) (AD) 27.
Article 102 and 117(2)- Jurisdiction of Administrative Tribunal- Transferability of a Government servant—
Transferability of a Government servant is one of the conditions of service. Remedy as to his grievance about transfer lies in the Administrative Tribunal and not in the writ jurisdiction of the High Court Division as contemplated by article 117(2) of the Constitution.
Shamsun Nur Begum Vs. The Secretary of the Ministry of Health and Family Welfare and others. 3, MLR (1998) (AD) 68.
Article 102— Writ Jurisdiction-Disputed question of title can not be gone into in writ jurisdiction—
In a proceedings where disputed question of title is involved the jurisdiction of the High Court Division under article 102 of the Constitution is ousted.
Fatema Khatun and others Vs. The Deputy Commissioner, Dinajpur and others. 3, MLR (1998) (AD) 71.
Article 102— Resignation not accepted and kept unattended— resultant consequence—
When an employee of the BADC submitted conditional resignation under protest of certain situation, and the authority having not taken any action thereon and on the contrary he was granted promotion and increment in the scale of pay, there is in fact no resignation letter in the true sense of the term, the authority by its subsequent conduct giving a go bye to the said letter of resignation.
Bangladesh Agricultural Development Corporation and others Vs. Mahafuz Mia. 3, MLR (1998) (AD) 137.
Article 102— Scope of writ jurisdiction—Guardian and Wards Act, 1890— Section 25(1)—Family Courts Ordinance, 1985— Section 5— Custody of minor- Best interest of child is paramount consideration-
The settled principle of law is that in deciding the dispute as to custody of minor child the best interest and welfare of the child shall be the paramount consideration whether in a proceeding of the nature of Habeas corpus or in a proceedings for guardianship. When question of disputed facts of guardianshipand custody of minor child are concerned and when there is already a case to that effect pending before the Family Court, the dispute as to custody may well be decided by the Family Court in the light of evidence and not in the writ jurisdiction. However adinterim order as to custody of the child may be passed in a proceeding under article 102 of the Constitution to meet an emergent situation.
Abdul Jalil and others Vs. Sharon Laily Begum Jalil (Mrs). 3, MLR (1998) (AD) 265.
Article 102(l)(a)(i)— Holding office during pleasure of the President—Army Act and Rules are not amenable to writ jurisdiction—
The Chief of ArmyStaff holds office in trust during the pleasure of the President. The remedy against his compulsory retirement lies by way of representation and memorandum to the President under the Army Act and Rules and not in the writ jurisdiction of the High Court Division and Civil Court.
Lieutenant General Abu Saleh Mohammad Nasim (Retd.) B.B.P.SC. vs. Bangladesh represented by the Secretary Minis try of Defence. 3, MLR (1998) (AD) 278.
Article 102— Adinterim injunction— Scope of interference—
Appellate Division of the Supreme Court does not feel inclined to interfere with the adinterim order of injunction passed by the High Court Division because the parties have the scope to represent their respective cases before the Bench of the High Court Division where the proceeding is pending.
Bangladesh represented by the Secretary Ministry of Establishment Vs. Khondaker Tajuddin Ahmed and others. 3, MLR(1998) (AD) 283.
Article 102— Article 45—Writ jurisdiction in respect of disciplined forces— Remedy lies in departmental channel—
Service of member of the disciplined force depends on the pleasure of the President. Action taken by the President in respect of any member of the disciplined force for maintenance of discipline and proper discharge of duties is not amenable to the jurisdiction of the High Court Division under article 102. Article 45 clearly excludes such jurisdiction. Unless the order is corum non judice and is passed in gross violation of fundamental rights or malafide affecting terms and conditions of service, the remedy lies not in the court of law but in official and departmental channel.
Lieutenant General Abu Saleh Mohammad Nasim (Retd) Vs. Bangladesh. 3, MLR (1998) (HC) 10.
Article 102— Public interest litigation—
A new horizon has been opened in the Bangladesh jurisdiction with regard to public interest litigation. The former position of invoking the extra-ordinary jurisdiction of the High Court Division under article 102 by an aggrieved person has been substantially changed. Now a member of the public can well invoke the jurisdiction of the High Court Division against violation of fundamental right like right to life which includes the right to livelihood, health, education etc. The right to property cannot be taken away except with due process of law and without payment of just compensation. With a view to ensuring the rule of law, Government action is subject to judicial review and the court has to see that the Government action conforms the rules of procedure.
Dr. Mohiuddin Farooque and another Vs. Bangladesh represented by the Secretary, Ministry of Irrigation, Water Development and Flood Control and others. 3, MLR (1998) (HC) 33.
Article 102—Rate of mutation fee on the date of registration of deed to be followed—
Petitioner is entitled to pay fee for mutation in the record of the RAJUK at the rate prevailing on the date of registration of the transfer deed and not on the date of the agreement for sale.
M/S Imam Dockyard and Engineering Industries Ltd. Vs. Rqjdhani Unnayan Kartipakha & others. 3, MLR (1998) (HC) 93.
Article 102— Madrasha teacher under government management is entitled to show cause before dismissal—
Teacher of a Madrasha attached with Mosque taken under the Government management and control through the Administrator of Waqf cannot be dismissed by oral order. Such an oral order of dismissal without affording opportunity of showing any cause in defence being violative of natural justice is not sustainable in law and the incumbent is entitled to be reinstated in service with back salaries and allowances as admissible under rules by invoking writ jurisdiction of the High Court Division.
Quazi Md. Abdul Haleem Vs. Government of Bangladesh represented by the Secretary, Ministry of Religious Affairs and others. 3, MLR (1998) (HC) 105.
Article 102— Entitlement to absorption on abolition of post—
Government servants declared surplus on abolition of their posts are legally entitled to absorption in the other cadre service in equivalent posts as provided under section 5 of the Surplus Government Servants Absorption Ordinance 1985. The High Court Division can well direct the National Board of Revenue to absorb the petitioners as nominated by Government through the Ministry of Establishment in exercise of its writ jurisdiction.
Matiar Rahman (Md) and others Vs. Bangladesh represented by the Secretary, Ministry of Establishment and others. 3, MLR (1998) (HC) 107.
Article 102— Circular does not create any legal right—
Government circulars are mere guidelines and are of directory nature. Circular does not create any statutory right enforceable in law. Public interest takes precedence over individual interest. There is no violation of the principle of natural justice when the Government cancels the lease granted for limited purpose in terms of the lease agreement as and when the same land is required for public purpose.
Syeda Rajiqua Chowdhury Vs. The Secretary, Ministry of Communication and others. 3, MLR (1998) (HC) 160.
Article 102— Where remedy in tax matter is available under the law by way of appeal writ jurisdiction can not be invoked—
Any enactment or amendment of provision of law when does not offend any provision of the Constitution cannot be declared ultravires the Constitution.The Income Tax Ordinance is a special law. The remedy provided therein must be strictly followed. When under the enabling provision the authority exercised its discretion in Tax matter, such action can not be held to be without lawful authority, discriminatory or malafide. In such matter resort to the writ jurisdiction of the High Court Division is not permissible.
Dandy Dying Limited Vs. The Secretary Ministry of Finance and others. 3, MLR (1998) (HC) 217.
Article 102— Writ jurisdiction can not be invoked where appeal lies—
Where there is specific provision of appeal under the Customs Act itself application under article 102 of the Constitution is not maintainable pending such an appeal against the levy of customs duty.
Friends Corporation (M/S) Vs. The Commissioner of Customs and others. 3, MLR (1998) (HC) 281.
Article 102— Writ Jurisdiction of High Court Division where alternative remedy is available— but saddled with inflexible pre-condition— Such remedy is not efficacious—
Appeal lies to the District Judge against the dismissal of a Motwalli of a Waqf Estate under section 32 (2) of the Waqf Ordinance, 1962 but before filing appeal the aggrieved Motwalli is mandatorily required to handover charge of the office of the Motwalli. The pre-condition being inflexible such remedy is held to be not efficacious and as such an application under article 102 of the Constitution is maintainable.
Tafijul Huq Sarker Vs. Bangladesh and others. 4, MLR (1999) (AD) 19.
Article 102— Pensionery benefits cannot be extended by decree of court—
Extending the pensionary benefits is the legislative function of the Government and it does not fall within the ambit of the jurisdiction of the Court. Thus pensionary benefits cannot be extended by the decree of the Court.
Bangladesh Retired Government Employees Welfare Association and others Vs. Bangladeshrepresentedbythe Secretary Ministry of Finance and others. 4, MLR (1999) (AD) 89.
Article 102— Pension is not a bounty of the State-
Now pension being one of the terms and conditions of service is a legal and enforceable right. Pension is earned in lieu of services rendered and is an old age provision.
Bangladesh Retired Government Employees Welfare Association and others Vs. Bangladesh represented by the Secretary Ministry of Finance and others. 4, MLR (1999) (AD) 89.
Article 102- Refixing pension in the light of price index- Moral consideration—
Claim for refixing pensions in the light of the money inflation and price rise in living index involves moral consideration which is not legally enforceable right. Unless extended by the Government through legislation the Court has no jurisdiction to interfere in such matter.
Bangladesh Retired Government Employees Welfare Association and others Vs. Bangladeshrepresented by the Secretary Ministry of Finance and others. 4, MLR (1999) (AD) 89.
Article 102(2)— Absence of legal right— Disentitles invocation of writ jurisdiction—
When the petitioners have no legal right to get permanent settlement of Government Khas land, they can notinvoke the writ jurisdiction of the High Court Division under article 102(2) of the Constitution.
Char Fashion Agriculture Complex Ltd. and others Vs. Bangladesh represented by the Secretary Ministry of Land and others. 4, MLR (1999) (AD) 174.
Article 102— Writ jurisdiction when can be invoked—
Question of disputed title and possession can not be decided in the writ jurisdiction. However extraordinary the High Court Division may have its jurisdiction in writ matters, such jurisdiction is ousted when question of disputed title and possession of the property in dispute is involved.
Shamsunnahar Salam (Mrs.) and others Vs. Md. Wahidur Rahman and others. 4, MLR (1999) (AD) 201.
Article 102 (2) — Not applicable to non-statutory body—
Application under article 102(2) of the Constitution against company which is not a statutory body is not maintainable.
Abdur Rahman (Md.) Vs. National Tea Company Ltd. & others. 4, MLR (1999) (AD) 347.
Article 102— No scope for reopening a finally settled issue—
Sitting of hat days depend upon convenience of local people. When the dispute between the two nearby hats was settled and was accepted by all concerned, subsequently the High Court Division in another writ Petition can not make observation for reopening the already settled issue which in the facts and circumstances is deleted.
Abdul Jalil (Mollah) and another Vs. Government of Bangladesh and others. 4, MLR (1999) (AD) 353.
Article 102- Disputed question of title and possession does not fall within the writ jurisdiction of High Court Division—
High Court Division cannot decide disputed question of title and possession of suit land in exercise of its writ jurisdiction. Observation made thereon by the High Court Division in exercise of writ jurisdiction shall not be taken into account by the civil court in the pending suit and also in any future litigation.
Government of Bangladesh represented by Secretary Ministry of Land Vs.M/s East West Property Development Put. Ltd. represented by its Director Md. Abu Sufian & others. 4, MLR (1999) (AD) 417.
Article 102— The Special Powers Act, 1974— Section 30— Provisions for appeal—
Where the alternative remedy is available under section 30 of the Special Powers Act, 1974 normally the writ jurisdiction under article 102 of the Constitution can not be invoked. But when in view of unusual circumstance the convict-appellant was deprived of his legal right of defence and the trial held beyond his knowledge and due to lack of knowledge he could not avail of the remedy under section 30 of the Special Powers Act, the extra-ordinary jurisdiction of the High Court Division under article 102 of the Constitution can well be invoked with a view to preventing the miscarriage of justice.
Mobarak Ali (Md) alias Mobarak All Mondal Vs. Bangladesh represented by Secretary Ministry of Home Affairs and others. 4, MLR (1999) (HC) 13.
Article 102— Remedy against breach of contract— Not available in writ jurisdiction—
Remedy against breach of contract lies in a regularly instituted suit in Civil Court. Application under article 102 of the Constitution for breach of contract is not maintainable in High Court Division.
Nuruddin (Md) Vs. Manager, Sales (C/B) and others. 4, MLR (1999) (HC) 33.
Article 102— Article 70— Duty of the Speaker to refer the dispute to Election Commission—
The Speaker is under the Constitutional obligation to refer to the Election Commission the dispute as to the cessation of the membership and vacating the seat under article 70(1) of the Constitution as required by article 66(4) and Rule 178 of the Rules of Procedure of Parliament, 1974 and when he fails to discharge this obligation the High Court Division can interfere under article 102 of the Constitution.
Khondakar Delwar Hossain Vs. Speaker, Jaliya Sangshad and another. 4, MLR (1999) (HC) 35.
Article 102— Writ petition does not lie in respect of Contractual dispute between private Companies—
A writ petition under article 102 of the Constitution is not maintainable when it involves dispute as to the amount of Gas bill and the dispute which arose out of contractual obligations between the two private companies.
Meghna Vegetable Oil Industries Ltd. Vs. Bangladesh Oil, Gas and Mineral Corporation (Petro Bangla) and others, 4, MLR (1999) (HC) 266.
Article 102- Writ Jurisdiction-Promissory estoppel—
Grant of lease of fisheries for three years for certain development scheme does not give any assurance of extension of the term of lease and as such there can be no question of promissory estoppel to lease out the said fisheries to other party. Bagbari Poshim.
Matshajibi Samity Ltd. Vs. Government of Bangladesh. 1, MLR (1996) (HC) 304.
Article 102 (2)— read with section 7 of P.O. 16 of 1972—Enlistment of abandoned property—
When the owner of certain property is a Bangladeshi national and never left the country, and was in possession thereof althrough, such property can not be enlisted in "Kha list" as abandoned property.
Syed Chand Sultana and others Vs. Government of Bangladesh. 1, MLR (1996) (HC) 310.
Article 102— Disputed question of fact can not be decided in writ jurisdiction—
A disputed question of fact requiring evidence to be decided does not fall within the ambit of writ jurisdiction of the High Court Division under article 102 of the Constitution.
Inland Fisheries Development Ltd. Vs. Bangladesh and others. 5 MLR (2000) (AD) 71.
Article 102— Writ jurisdiction in matters of disputes relating to the terms and conditions of service is ousted as contemplated by article 117—
Unless the vires of any law or rule is challenged on ground of constitutionality and enforcement of fundamental rights as enshrined in our Constitution is sought for, all the disputes relating to terms and conditions of service including promotion and seniority fall within the exclusivejurisdiction of the Administrative Tribunal as envisaged under article 117 of the Constitution.
Delwar Hossain Mia (Md.) and another Vs. Bangladesh represented by the Secretary Ministry of Home Affairs and others. 5 MLR (2000) (AD) 74.
Article 102- Preliminary inquiry in the nature of fact finding by an enquiry committee is not illegal- Such an action relates to the terms and conditions of service and as such writ jurisdiction is ousted—
There is nothing wrong in holding preliminary enquiry in the nature of fact finding before drawing up of departmental Proceedings by a committee of three members one of whom is of the lower rank of the person allegedly involved in the subject of inquiry. The dispute relates to the terms and conditions of service and as such does not come within the arnbit of writ jurisdiction.
Shamsul IslamKhan (Md) Vs. Secretary Ministry of Communications, Govt. of Bangladesh and others. 5 MLR (2000) (AD) 76.
Article 102— Withdrawal of writ petition by the petitioner cannot be refused—
It is the absolute right of the petitioner to proceed or not to proceed with his writ petition. When withdrawal of writ petition is sought by the petitioner, it cannot be refused as a matter of course. But when an enquiry as to certain point is pending under order of different Bench, granting of withdrawal by another Bench does not fall within judicial norms and propriety.
Novartis Foundation for Sustainable Development Vs. R.K. Ruma General Secretary BIKASH and others. 5 MLR (2000) (AD) 234.
Article 102— Writ jurisdiction-disputed question of facts—
Position of law is clear that disputed question of fact does not fall within the ambit of writ jurisdiction and as such a writ petition on such matter is not maintainable.
Shamsul Hoque Khan (Md). Vs. Ministry of Law, Justice and Parliamentary Affairs & others. 5 MLR (2000) (AD) 274.
The Rules of the High Court Division—Interference with decision of Division Bench by single Bench—
Interference with an order of regular Division Bench by a single vacation judge unless there is a compelling situation of utmost urgency, has been deprecated usually as improper, inexpedient and overbearing with disrespect of propriety. Although a single vacation Judge does not lack in jurisdiction, he is meant to deal with urgent matters only arising during vacation and as such in extreme circumstances, such discretion can be exercised most sparingly.
Azizur Rahman (Md) Vs. Government of Bangladesh represented by the Secretary, Ministry of Housing and Public Works and others. 2, MLR (1997) (AD) 233.
Article 103(3)—Missing point requiring consideration of evidence can not be agitated before Appellate Division—
When not agitated earlier before the trial eoi'rt, appellate court and even before the revisional Court, no such missing point which involves consideration of evidence afresh can be raised before the Appellate Division for the first time.
Narayan Chandra Das and others Vs. Abdul Jobbar Dewan and others. 4, MLR (1999) (AD) 349.
Article 103—Interference except for non-consideration— By High Court Division—
Findings of fact arrived at by the trial court and affirmed by the lower appellate court in appeal as well as by the High Court Division in revision on proper appreciation of evidence on record cannot be interfered with by the Appellate Division unless there is any case of non-consideration or misreading of any material evidence occasioning failure of justice.
Basir Ahmed Vs. Abdul Barek Mia. 2, MLR (1997) (AD) 349.
Article 104—Doing complete justice and prevent abuse of the process—
Usually the Appellate Division is reluctant to interfere with the concurrent finding of fact of the courts below. But where in any judicial proceeding fraud has been practised it is under the dictate of judicial conscience, the Appellate Division comes up to interfere to prevent the abuse of the process of law and to do complete justice.
Government of Bangladesh and another Vs. Mashiur Rahman and others. 2, MLR (1997) (AD) 316.
Article 104— Doing complete justice—
The Appellate Division only has been bestowed with the jurisdiction of doing complete justice in any matter pending before it under Article 104 of the Constitution.
Secretary Internal Resources Division Ministry of Finance Vs. Nasrin Banu and others. 1, MLR (1996) (AD) 39.
Article 105— Review— (Order 47 rule 1 of the Code of Civil Procedure)— Review of judgment—
Review of judgment or order can only be made on the ground of error apparent on the face of the record. No review can be allowed for affording opportunity of rehearing on points not urged earlier by a party.
Zobaida Naher & Jharna Vs. Mst. Khairannessa being dead her heirs Md. Feroz Alam and others. 2, MLR(1997) (AD) 415.
Article 105— Review of judgement by Appellate Division—
When the judgment of the High Court Division was modified on the party's counsel conceding to the fact of forgoing the claim of seniority in respect of certain Batch by filing petitions to the relevant authority, subsequent unilateral withdrawal of the said petitions does not render any ground for review of the judgment.
Matiur Rahman and others Vs. Bangladesh and others. 4, MLR (1999) (AD) 197.
Article 105— Review of judgment by the Appellate Division—
Unless material new fact is discovered having direct bearing on the decision of the Appellate Division no review is warranted.
Golam Rahman Mallik Vs. Government of Bangladesh. 4, MLR (1999) (AD) 352.
Article 106—Satisfaction of the President justifies a reference to the Supreme Court under article 106—
The satisfaction of the President that a question of law has arisen or is likely toarise and that it is of public importance and that it is expedient to obtain opinion of the Supreme Court justifies a Reference.
Special Reference No. 1 of 1995— 1, MLR (1996) (AD) 8.
Motive not material
The Supreme Court cannot go into examining the expediency or motive, political or otherwise while answering the reference.
Special Reference No 1 of 1995 — 1, MLR (1996) (AD) 8.
Opinion not judgement—
The opinion of the Supreme Court is not a judgment and it has no binding effect.
Special Reference No. 1 of 1995— 1, MLR (1996) (AD)12
Supreme Court is ultimate arbiter
The Supreme Court is the ultimate arbiter in deciding whether it is appropriate in a particular case to take upon itself to pronounce its opinion on an issue which may be dubbed as a political question.
Special Reference No. 1 of 1995—1, MLR (1996) (AD) 10.
Boycott aims at forcing settlement of dispute—
A boycott is refusal to have contact or a deliberate breaking of relationship to force settlement of dispute.
Special Reference No. 1 of 1995— 1, MLR (1996) (AD)16.
Democratic culture—
Democratic norms is a trust reposed upon all sections of the Parliament which is called democratic culture required to be practised by all in the business of politics.
Special Reference No. 1 of 1995. 1, MLR (1996) (AD) 20.
Article 115— Judicial Officer's terms and conditions of service to be governed by separate Rules and Law— Rule making power—Article 116A— Independence of judicial officers in exercise of their duties—
While administering justice, the judicial officers are independent and in view of the nature of their job they cannot be equated and tagged with other services of the Republic as contemplated under article 116A of the Constitution.Article 115 provides for making rules for governing the terms and Conditions of the service of judicial officers and accordingly the President is urged upon to make necessary rules for the judicial officers constituting distinctly a separate service under the title "Bangladesh Judicial Service" and also to constitute Judicial Service Commission for recommending their pay, grade and allowances.
Secretary, Ministry of Finance, Gout, of Bangladesh Vs. Md. Masdar Hossain and others. 5 MLR (2000) (AD) 89.
Article USA-Independence of Judiciary— Financial Independence of the Supreme Court— Budgetary provision to be made on requirement of the Supreme Court—
In order to secure the independence of the Supreme Court it should be given financial independence also without which its independence will not be complete and meaningful. The appellant is directed to make budgetary provision as per the requirement of the Supreme Court independent of interference from any other ministries.
Secretary, Ministry of Finance, Govt. of Bangladesh Vs. Md. Masdar Hossain and others. 5 MLR (2000) (AD) 89.
Article 116— Consultation with the Supreme Court—
The President is under the Constitutional obligation to consult the Supreme Court while appointing, posting, promoting etc. the judicial officers and magistrates exercising judicial functions under article 116 of the Constitution. When not consulted with the Supreme Court the mandatory constitutional provision is violated rendering the action so taken, illegal and viod. Any citizen can maintain a writ quo warranto against violation of the Constitution.
Government of Bangladesh represented by Secretary Ministry of Establishment Vs. Md. Idrisw Rahman, Advocate & others— 4, MLR (1999) (AD) 225.
Article 119(2)—Powers of the Election Commission to conduct elections—The Union Parishad Ordinance, 1983— (No.51 of 1983) Section 24-Power to direct- repelling—The Union Parishad Election Rules 1983—
Under article 119(2) of the Constitution the Election Commission is vested with full power of superintendence and control for holding elections fairly in accordance with law. On ground of palpable rigging in the election the Election Commission can well direct repelling on setting aside the election even though the Presiding officer and Returning Officer do not submit report as to any disturbance in the election.
Abdul Quader Farazi Vs. Chief Election Commissioner and others. 4, MLR (1999) (HC) 67.
Article 102— Locus stand! in writ quo warranto— Article 116— Consultation with the Supreme Court—
Under Article 116 of the Constitution the President is mantatorily required to consult the Supreme Court while appointing, posting, transferring, promoting, taking disciplinary action in respect of judicial officers and magistrates exercising judicial functions. Chief Metropolitan Magistrate exercises judicial functions and as such falls under article 116 of the Constitution. When not consulted with the Supreme Court, such appointment is illegal and violative of the Constitution. Any conscious citizen can maintain a writ quo warranto against constitutional violation.
Idrisur Rahman (Md) Vs. Shahiduddin Ahmed and others. 4, MLR (1999) (HC) 199.
Article 117—Judicial officers are amenable to jurisdiction of Administrative Tribunals—
Administrative Tribunals are creation of the Constitution. For deciding any dispute arising out of the terms and conditions of their service, the judicial officers shall be amenable to the jurisdiction of the Administrative Tribunals.
Secretary, Ministry of Finance, Govt. of Bangladesh Vs. Md. Masdar Hossain and others, 5 MLR (2000) (AD) 89.
Article 133—Rule making power of the President— Judicial Officers cannot be at par with other officers—
The President can not make rules under article 133 of the Constitution for the judicial officers treating them at par with other services.
Secretary, Ministry of Finance, Govt. of Bangladesh Vs. Md. Masdar Hossain and others. 5 MLR (2000) (AD) 89.
Article 134— Holding office during pleasure of the President—Navy Rules, 1961— Rule 14(5)— Inquiry reports— Action taken thereon—
Every person in the service of the Republic holds his office during the pleasure of the President. Unless it is malafide the exercise of the pleasure of the President is not subject to judicial review. So long not made public, the reports of the Court of Inquiry or Inquiry Commission are confidential documents of the State. Review of the judgment is not permissible in law without discovery of new facts materially affecting the decision.
Rear Admiral A.A. Mustafa Vs. Bangladesh represented by the Secretary Ministry of Defence. 4 MLR (1999) (AD) 238.
Article 134— Chief of Army Staffs holds office during the pleasure of the President —Army Rules and Regulations are not amenable to judicial review under article 102—
The post of the Chief of Army Staffs is a position of trust and confidence and as such the Chief of Army Staffs holds office during the absolute pleasure of the President as contemplated by article 134 of the Constitution.
Major General Moinul Hossain Chowdhury Vs. Government of Bangladesh & others. 4, MLR (1999) (AD) 389.
Article 152(1)— Judicial service defined—Article 135— Constitutional protection is available to judicial officers—
Judicial service has been defined under article 152(1) of the Constitution as a distinct and separate service which can not be treated as equal with other services of the Republic. Treating judicial officers equal with other service of the Republic is opposed to and violative of the constitutional scheme. Though the judicial officers form a separate and distinct service as designed under the Constitution, they are, in a generic sense, in the service of the Republic, and as such are entitled to the constitutional protection under article 135.
Secretary, Ministry of Finance, Gout, of Bangladesh Vs. Md. Masdar Hossatn arid others. 5 MLR (2000) (AD) 89.
Article 14Q-President not bound to consult P.S.C. in all matters—Effect of non-consultation—
The President is not bound to consult the Public Service Commission in all matters relating to the terms and conditions of the service of the Republic. Non-consultation does not render any decision invalid.
Bangladesh represented by the Secretary Ministry of Establishment Vs. Shafiuddin Ahmed &, others. 2, MLR(1997) (AD) 257.
Article 142— Indemnity (Repeal) Act 1996—Procedureforamendmentofthe provision of the Constitution— Indemnity Ordinance, 1975— Whether became part of the Constitution by reason of its inclusion in theparagraph3Aand 18of the Fourth Schedule requiring its amendmentthrough the procedure under article 142 of the Constitution. Indemnity (Repeal) Act 1996— Whether a valid piece of legislation—
Since the Constitution remained suspended during the Martial Law Regimethe inclusion of all the Martial Law Regulations, Orders, Ordinance etc. in the Fourth Schedule of the Constitution after their ratification by the Parliament on the lifting of the Martial Law was for the purpose of maintaining continuity of the constitutional process. By reason of such inclusion the Indemnity Ordinance 1975 was never made part of the Constitution and as such this Ordinance could well be amended by the Parliament by simple majority just like ordinary legislation in which case article 142 of the Constitution is not applicable. Thus the Indemnity (Repeal) Act, 1996 is perfectly a valid law.
Shahriar Rashid Khan and another Vs. Bangladesh and others. 3, MLR (1998) (AD) 233.
Indemnity Repeal Act, 1996 (Act. No.21 of 1996—Whether ultravirestheConstitution—Article 142—
Indemnity Ordinance, 1975— Paragraph 3A and 18 of the 4th Schedule of the Constitution— Inclusion in the schedule does not form part of the Constitution—
An Ordinance though protected by way of inclusion in the schedule of the Constitution does not form part of the Constitution. The Indemnity Ordinance, 1975 (Ord 50 of 1975) as such not being part of the Constitution does not require two third majority members of the Parliament for its repeal as contemplated by article 142 of the Constitution.When Constitution provides equality of every citizen before law, the Indemnity Ordinance 1975 was violative of the basic principle and fundamental rights guaranteed under the Constitution and as such the Indemnity Ordinance, 1975, being a simple legislation has been rightly and validly repealed by the Indemnity (Repeal) Act 1996 (Act No 21 of 1996) by simple majority members of the Parliament. The Indemnity (Repeal) Act, 1996 being a valid legislation is not ultra vires the Constitution and as such is not liable to be struck down.
Shahriar Rashid Khan and Mrs. Mahmuda Rahman Vs. Bangladesh represented by the Secretary, Ministry of Law and others. 2, MLR(1997) (HC) 25.
Articles 2(a),55, 142(2) and 143(2)—Treaty involving cession of territory of Bangladesh. (Delhi Treaty effected on 16th May 1974)— Constitutional requirement—
Though treaty-making powers of the Government fall within the ambit of the executive power under article 55(2) of the Constitution, a treaty involving determination of boundary and more so involving cession of territory can only be concluded with the concurrence of Parliament by necessary enactment i.e. in case of determination of boundary by an enactment under article 143(2) and in case of cession of territory by amending article 2(a) of the Constitution by a recourse under article 142.
Kazi Mukhlesur Rahman Vs. Bangladesh. 26 DLR (SC) (1974) 45.
Article 31 and 32— Right to protection of law, life and liberty—
According to article 31 of the Constitution, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and no action detrimental to life, liberty, body, reputation or property of a personshall be taken except in accordance with law. Like-wise article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law.
Abdul Latif Mtrza Vs. Government of Bangladesh. (1979) 31 DLR (AD) 6.
Article 35— Prohibition against conviction not provided by law at the relevant time—
Article 35 contains constitutional prohibition to the effect that "no person shall be convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence.
Mafizur Rahman Vs. Government of Bangladesh. 34 DLR (1982) (AD) 321.
Article 47(2)— Protected laws— Shall Prevail despite repugnancy—
Clause (2) of article 47 of the Constitution provides in clear language with a non-obstinate clause that inspite of what has been contained in the Constitution, the protected laws shall have validity and their vires could not be challenged on the ground of inconsistency with or repugnancy to any provision of the Constitution.As provided under clause (2) of article 47 two kinds of protection are there— first is the legislative protection to the laws specified in the First Schedule and the second is the action taken under those protected laws.Government of Bangladesh Service Screening Order 1972 (P.O. No 67 of 1972) since protected under article 47(2) notwithstanding any inconsistency shall prevail.
Kazi Mokarram Hossain Vs. Secretary, Ministry of Cabinet Affairs. 31 DLR (AD) 64.
Article 48 read with article 55— Act done by a Minister is an act of the Government—
The President is the constitutional head and the Prime Minister heads the Cabinet as the executive head and forms the Government of Bangladesh and as such the executive authority of the State vests in the Cabinet or the Council of ministers.Particular function done by a Minister as prescribed by the Rules of Business is a function done under the authority of the Government.
Government of the People's Republic of Bangladesh Vs. Md.Habibur Rahman. 31 DLR (AD) 152.
Article 102— Extra-ordinary jurisdiction of High Court Division— Coram non-judice—
If the Martial Law Court or Tribunal acts without jurisdiction or is not properly constituted or acted malafide, the High Court Division under article 102 may interfere with such acts.
Khondaker Ehteshamuddin Ahmed Vs. Bangladesh. 33 DLR (AD) 155.
Article 102— When alternative remedy is available writ jurisdiction can not be invoked—
Remedy by way of invoking extraordinary wilt jurisdiction must be sought without inordinate delay.Availability of alternative remedy is a part of the positive law of the country and where such an alternative remedy is available the extraordinary remedy by invoking writ of certiorari can not be granted.
Shafique Rahman Vs. Certificate Officer. (1977) 29 DLR (SC) 232.
Article 102— Local Authorty— PublicCorporation-violationofnatural justice—
BSI Corporation being a local authority falls within the category of persons performing function in relation to the affairs of the Republic. The High Court acting under article 102 may make an order against a Public corporation when it dismisses an employee of a public corporation in violation of statutory rules and in breach of the principles of natural justice. Principle of natural justice evisages that no one should be condemned unheard and without affording an opportunity of defence.
BSI Corporation Vs. Mahbub Hossain. 29 DLR (SC) 43.
Article 102—Interference with decision of Court-Martial on ground of coram non-judice—
High Court Division has no jurisdiction to interfere with decision of Court Martial unless it is affected by coram non-judice.
Jamil Huque Vs. Bangladesh. 34 DLR (AD)125.
Article 102— Enforcement of judgment of writ petition—Remedy in contempt proceeding—
When judgment in a writ petition has been pronounced by the High Court Division there remains nothing pending before it. The authority concerned has to enforce the direction of the judgment. In the event of failure of the authority to carry out the court's order, the remedy lies in the contempt proceedings. Question of abatement does not arise as there remains no proceeding pending before the court after pronouncement of judgment.
Bangladesh Vs. Md. Salimullah. (1983) 35 DLR (AD) 1.
Article 102— Scope of writ jurisdiction— High Court Division can not sit as court of appeal in writ proceedings—
The jurisdiction of the High Court Division in the nature of certiorari is not so wide or large as to enable it to convert itself into a court of appeal.
AyeshaSalahuddin- Vs. Chairman. (1980) 32 DLR (AD) 68.
Article 102— BCSIR being a local authority is amenable to writ jurisdiction—
Bangladesh Council of Scientific and Industrial Research Laboratories is a local authority" within the meaning of the expression as defined in the General Clauses Act and as such an application under article 102 of the Constitution is maintainable.
A.Z. Rafique Ahmed Vs. BCSIR. 32 DLR (AD) 83.
Article 102 (3) (b) (C) — Detention to be struck down when made without lawful authority or in unlawful manner—
The two expressions "without lawful authority" and "in an unlawful manner" are to be interpreted keeping in view the satisfaction of the court as to whether the action is in accordance with law. Law has to be understood in its general connotation to include authoritative judicial principle laid down by the superior courts. To say with comprehensiveness and clarity the phrase embodies the cardinal principle of "due process" as in the American Constitution. Considered in this sense an action which is malafide, colourable exercise of statutory power, or taken upon extraneous or irrelevant considerations and actions taken upon no ground orwithout application of mind of the detaining authority are actions which do not qualify as actions in accordance with law should be struck down as an action taken in an unlawful manner.
Abdul Latif Mirza Vs.Government of Bangladesh. 31 DLR (AD) 1.
Article 102(5)— Disciplined force-Not amenable to writ jurisdiction—
Court or tribunal set up to deal with any matter relating to disciplined force are not amenable to the jurisdiction of the High Court Division under article 102 of the Constitution. Inspector of Police is and must be held to be a member of disciplined force within the meaning of the definition given in clause (5) of article 102 of the Constitution.A member of the disciplined force cannot invoke writ jurisdiction for redress of his grievance. To extend such a privilege would undermine the discipline of the defence service.
Bangladesh Vs. Md. Abdur Rab. 33 DLR (AD) 143.
Article 107(3)— Constitution of the Bench of High Court Division— Validity of action done by judge not as properly constituted Bench—
After the Bench is dissolved by order of the Chief Justice under the provision of article 107(3) of the Constitution it can not work. If the said Bench continues to work ignoring the order of the Chief Justice it acts wholly without jurisdiction.
Moazzam Hossain Vs. The State. 35 DLR (AD) 290.
Article 109— Court Martial not amenable to jurisdiction of High Court Division—
Court Martial set up under the Army Act is not subordinate to the jurisdiction of the High Court Division as contemplated in article 109 of the Constitution.
Jamil Huq Vs. Bangladesh. 34 DLR (AD) 125.
Article 133— Military service— Whether service of the Republic—
Though the Military Service comes within the service of the Republic but so far article 133 of the Constitution is concerned, the appointments and conditions of service in the Military-capacity are to be regulated by separate laws made by the Parliament.
Bangladesh Vs. Md. Abdur Rab. 33 DLR (AD) 145.
Article 134 and 135— Pleasure doctrine of the President— Not unfettered—
The expression pleasure of the President is not absolute and unlettered power but is subject to the provisions of article 135 of the Constitution. The order of termination of service made without complying with the requirements of article 135 must be knocked down as illegal and void.
Dr. Nurul Islam Vs. Bangladesh. 33 DLR (AD) 201, 204.
Article 134 and 135— Combined effect of— Constitutional protection in service matters—
A combined reading of article 134 and 135 of the Constitution reveals that a person in the service of the Republic holds his office during the pleasure of the President. But when he holds a post in civil capacity the pleasure doctrine is circumscribed by two conditions— one as to the authority to take action and the other procedure by which the action is to be taken. This constitutional guarantee is that no person in civil employment shall be dismissed, removed or reduced to a lower rank by an authority subordinate to that by which he was appointed and no such action shall be taken unless he has been given a reasonable opportunity of showing cause as to why that action should no be taken.
Bangladesh Vs. Dhirendra Nath Sarker. 34 DLR (AD) 173.
Article 102—Military services— Police sevice— Whether belong to the category of Defence Service—
Military Services such as army, navy and airforce belong to the Defence Services in the category of disciplined force. Police service belonging to the category "b" of the disciplined force do not belong to defence service and as such they hold posts in civil capacity. In that view of the matter a police officer dismissed from service can seek his remedy in the High Court Division under article 102 of the Constitution.
Bangladesh Vs. A.K.M. Jahangtr Hossain. (1982) 34 DLR (AD) 173.
Article 135— Compulsory retirement has the same effect as dismissal— Second show cause notice necessary—
Though article 135(2) of the Constitution does not speak of compulsory retirement from service, the effect is same as of dismissal or removal if a person is compulsorily retired from service by way of punishment and as such it amounts to removal or dismissal.The expression "proposed action" means action proposed to be taken on the provisional finding of guilt arrived at and prior to that stage the proposed action is mere hypothetical. Therefore, as contemplated by article 135 second show cause notice should be given to a person against whom a major penalty is proposed even though the Government Servants (Discipline and Appeal) Rules do not provide for the second show cause notice as to why the proposed punishment should not be awarded to him.
Fazlul Huq Chowdhury Vs. Government of Bangladesh. (1978) 30 DLR (HC) 144.
Article 102—Appeal against judgment after expiry of statutory period when couched in negative term— Mandatory—
The second proviso to the 7th paragraph of the Fourth Schedule has been couched in a negative and prohibitory form. In such a case the cardinal rule of construction is that where statutory restriction are couched in negative term they are almost invariably held to be mandatory.
Osman Gani Vs. Moinuddin Ahmed. (1975) 27 DLR (AD) 61.
Article 100— Rule of Law—
To secure the rule of law for all citizens being one of the fundamental aims of our society is the pole star of the Constitution of Bangladesh for the furtherance of which the provision of judiciary have been incorporated therein.Article 7 is the statute of liberty, supremacy of law and rule of law. The preamble and article 7 of the Constitution can not be amended without referendum. King is not above law but under the law. The unitary character of the Supreme Court under the constitutional scheme can not be destroyed. Thus the 8th Amendment relating to article 100 is struck down accordingly. The basic features of the Constitution cannot be altered. Article 7 provides that any law inconsistent with the Constitution shall be void to the extent of the inconsistency. The judiciary is to consider the validity or otherwise of the law and declare it void if it is in conflict with article 7.
Anwar Hossain Chowdhury Vs. Bangladesh. 41 DLR (AD) 165.
Fundamental principles of State policy— Not enforceable—
Fundamental principles of state policy being guidelines are not justiciable in court.
Sheikh Abdus Sabur Vs. Returning Officer. 941 DLR (AD) 30.
Article 35- Protection against trial and punishment—
Protection in respect of trial and punishment for more than once for the same offence as referred to in article 35 is applicable to criminal prosecution only.
Md. Serajul Islam Vs. Director General of Food. 42 DLR (AD) 199.
Article 102—Writjurisdiction can not be invoked in Election matters—
Writ jurisdiction can not be invoked where alternative remedy is available by way of Election petition before the tribunal.
Zaker Hossain Vs. Abdur Rahim. 42 DLR (AD) 153.
Article 102- Writ against departmental proceedings against a GovernmentServant—Notpermissible—
Writ jurisdiction can not be invoked for challenging departmental proceedings of a Government Servant.
Md. Serqjul Islam Vs. The Director General of Food. 42 DLR (AD) 199.
Alternative remedy when not bar to writ—
When purely a question of law or interpretation of satute is raised, availability of alternative remedy by way of appeal or revision is no bar to invoke writ jurisdiction .
MA. Hat Vs.T.C.B.40 DLR (AD) 206.
Basic features of Constitution changed not to be challenged after long time—
Though the Fourth Amendmen altered and destroyed the basic and essential feature of the Constitution, the same has not been declared invalid because of lapse of time and change of political scenario in consequence of the change of government.
Hamidul Huq Chowdhury Vs. Bangladesh. 34 DLR (HC) 381.
Principles of State Policy— Not enforceable in law—
There is clear distinction between enforceability of the principles of State policy and interpretation of laws in conformity with those principles. A lav/ cannot be struck down for inconsistency with any of the principles of state policy. The principles of state policy are guidelines and are not enforceable in court of law.There is no scope for forming a local government body outside the ambit of article 59 or composed of non-elected persons.
Kudrat-E-Elahi Vs. Bangladesh. 44 DLR (AD) 319.
Supreme Court loses its constitutional superior position on Proclamation of Martial Law—
The moment the country is put under Martial Law, the constitutional jurisdiction of the Supreme Court along with other civil laws of the country loses its superior position.
State Vs.Joynal Abedin. 32 DLR (AD) 110, 123.
Martial Law does not leave behind any shadow on criminal offences—
The ordinary laws of the country cannot ever contemplate or visualise extra-constitutional offences tried by extra constitutional courts or tribunals in an extra-constitutional dispensation. Nor is there any constitutional mandate to read Martial Law offences and Martial Law courts whenever there is any reference to criminal offences and conviction in any general law of the land. It is well settled that Martial Law is not a part of constitutional scheme of this country. It is a temporary measure, a short term arrangement. It meets only an interim need. When it leaves, it usually legalises all past actions for purposes of immunity,withthetacitacknowledgment that its interference with the constitutional process is an aberration and needs to be condoned. But while leaving Martial Law does not leave any trail of disqualification. It is good as long as it lasts, but with its departure it no longer casts a shadow upon the ordinary laws of the land.
Monoranjan Mukherjee Vs. Election Commission. 41 DLR (HC) 484.
Ratification of actions done on the lifting of Martial Law-
Martial Law goes but its actions are ratified and the remnants of Martial Law are grafted into the constitutional system. Therefore, the Proclamation of Martial Law, Martial Law offences and Martial Law Courts die a natural death when the Martial Law is revoked but its legacies and fall outs continue to the extent and in the manner expressly provided by the saving clauses repealing the Martial Law Regulations and Orders.Nasrin Kader Siddiqui Vs. Bangladesh.
44 DLR (AD) 16 (Para 71, 72).
Review of Martial Law Orders by Government—
As provided under section 6 of the General Clauses Act the power of review of Martial Law orders continues with the Government after the lifting of the Martial Law.
Bangladesh Vs. Mahbubur Rashid. 1981 ELD (AD) 300.Principal Secretary, President's Secretariat Vs. Mahtabuddin. 42 DLR (AD) 214.
Doctrine of "Due process"—
Law here is not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior courts. It means according to the accepted forms of legal process and postulates a strict performance of all thefunctions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb".
West Pakistan Vs. Begum Shorish Kashmiri. 21 DLR (SC) 1. (12)Abdul Latif Mirza Vs. Bangladesh. 31 DLR (AD) 1, (21).
Article 59- Local Government-Effect of abolition—
The Government or for that matter, any person or body, not elected in the area according to law, cannot upon abolition of a local government institution of that tier, take over the authority, powers, functions and privileges of a local government institution of that tier even for a temporary period or as stop-gap-arrangement.These bodies made great contribution to the country's democracy, which is now a basic structure of the Constitution with the revival of the constitutional backing for "Local Government", these old institutions cannot be abolished without damaging the democratic fabric of the country.
Kudrat-E-Elahi Vs. Bangladesh. 44 DLR (AD) 319, 329, 346.
Article 99— Prohibition on holding office of profit in the service of the Republic by a Supreme Court Judge—
The purpose behind this prohibition was that the high position and dignity of a Judge of the Supreme Court should be preserved and respected even after his retirement and, further that if any provision was made for holding of office, after retirement, then a Judge, while in the service of the Supreme Court might be tempted to be influenced in his decisions in favour of the authorities keeping an eye upon a future appointment.
Abdul Bari Sarker Vs. Bangladesh. 46 DLR (AD) 37, 38.
Article 104-Doing complete justice—
Considering the vagaries of legal proceedings and the technicalities involved in adjudication, article 104 of the Constitution has invested as a measure of abundant caution, the last court of the country with wide power, so that it may forestall a failure of justice and to do complete justice in an appropriate case. It is an extra ordinary procedure for doing justice for completion of or putting an end to a cause or matter pending before the court. If a substantial justice under law and on disputed facts can be made so that parties may not be pushed to further litigation then a recourse to the provision of article 104 may be justified. Complete justice may not be perfect justice and any endeavour to attain the latter will be an act of vanity. Husband constructing house on land of his wife is permitted to live in one floor and the wife retaining her possession in the rest of the building and to recover possession subject to the payment of taka 6 lacs being the price of construction.
Naziruddin Vs. Hameda Barm. 45 DLR (AD) 38. 44.
Suo-motu Review of its ownjudgment or order by the SupremeCourt
Appellate Division can suomotu reviewits judgment or order.
Mohbubur Rahman Sikder Vs. MujibarRahman Sikder, 37 DLR (AD) 145.
Apology—In contempt case—
Apology is an act of contrition. If tendered it may not be necessarily accepted and the contemner purged of his contempt. When a contemner tenders apology as an act of contrition the court must weigh that apology tendered by the contemner. If the apology is found to be a real act of contrition, no action need be taken and a word of warning may be enough but if the apology is qualified, hesitant and sought to be used as a device to escape the consequence of the contemner's action it must be rejected.
Shamsur Rahman Vs. Tahera Nargis 44, DLR (AD) 237.
Contempt of Court— Power to punish contempt—
The Supreme Court has been invested with power to punish the contempt of court not for the protection of the individual judges from imputations, but for the protection of the public themselves from the mischief they will incur if the authority of the Supreme Court is impaired.
Moazzem Hossain Vs. The State. 35 DLR (AD) 290.
Interference with administration of justice constitutes contempt—
When one Upazila Nirbahi Officer sat by the side of a Munsif-Magistrate in the Court room and told the Munsif in the presence of the advocates and the litigant public as to how to conduct criminal cases, this unwarranted and unprecedented interference with the administration of justice constituted contempt of court and was punished by the High Court Division which was affirmed by the Appellate Division of the Supreme Court.
State Vs. Abdul Karim Sarker. 37 DLR (HC) 26Abdul Karim Sarker Vs. the State. 38 DLR (AD) 188.
Election to Women Reserve Seats— Article 121 of the Constitution—
The indirect election of the Women Members of the Parliament against reserved seats was challenged on the ground of being undemocratic and violative of the article 121 and article 28 of the Constitution, the Appellate Division of the Supreme Court rejected the contention.
Dr. Ahmed Hossain Vs. Bangladesh 44 DLR (AD) 109.
Coram Non-judice— Malice in Law—
Election Commission is to ensure free and fair elections. The inherent power of the court should be exercised sparingly in relation to the election matters and only on the ground of corarn nonjudice or malice in law.This power is to be exercised with utmost restraint, for frequent use of it is likely to render other statutory functionaries ineffective. It is rather difficult to draw a line of demarcation of the field where this should be exercised and where should not. But from the experience it is found that sometimes statutory functionaries on the spot do not make timely report as to any disturbance during poll or large scale rigging at the time of counting of ballot papers either through coercion or from dishonest motive. So the general rule that where the election has been held peacefully and no report has been made about any disturbance or rigging by the Presiding officer or the Returning Officer, then the Election Commission has no power to interfere, can not be taken for universal application.
Altaf Hosain Vs, Abul Kashem, 45 DLR (AD) 53. Shah Alam Vs, Mujibul Huq, 41 DLR (AD) 68. Zaker Hossain Vs, Abdur Rahim, 42 DLR (AD) 153.
Service of the Republic—Article 152— Service of Statutory Corporation not included—
The Services of the Republic as defined under article 152 of the Constitution do not include any service under any statutory corporation and the provisions of Part IX of the Constitution are not applicable to such service. The fact that certain service benefit enjoyed by the government servants have been made available to some Bank employees does not confer upon them the status of government servants.
Sheikh Abdur Rashid Vs. Bangladesh, 29 DLR (HC) 362, Bangladesh Vs. MD. Alauddin, 38 DLR (AD) 81.
Article 52(1)—Immunity of President from criminal prosecution while in office—
As provided in article 52(1) of the Constitution of the People's Republic of Bangladesh, immunity of the President from criminal prosecution is available only when he is in office and not thereafter.
Hussain Mohammad Ershad Vs. The State. 11 BLD (AD) 55.
Article 65—Power of the Parliamentto validate invalid law and the constitutional provision—Prospectivelyorretrospectively—
Parliament is the supreme legislative authority subject to the constitutional limitations. Unless prohibited by the Constitution it can pass any law on any subject either prospectively or retrospectively. Similarly it can also validate any invalid law within the constitutional vires either prospectively or retrospectively.
Mofizur Rahman Khan Vs. Government of Bangladesh. 2 BLD (AD) 120.